Special counsel Jack Smith has moved to dismiss his federal election interference case against President-elect Donald Trump over a longstanding Justice Department policy barring prosecution of a sitting president.
Nearly 16 months after a grand jury first indicted Trump for his alleged efforts to illegally overturn the results of the 2020 election, Smith has asked U.S. District Judge Tanya Chutkan to throw out the case ahead of Trump’s impending inauguration, according to a motion filed Monday.
“As a result of the election held on November 5, 2024, the defendant, Donald J. Trump, will be inaugurated as President on January 20, 2025,” Smith’s motion states. “It has long been the position of the Department of Justice that the United States Constitution prohibits the federal indictment and subsequent criminal prosecution of a sitting president. But the Department and the country have never faced the circumstance here where a federal indictment against a private citizen has been returned by a grand jury , and a criminal case is already underway when the defendant is elected president.”
“Faced with this unprecedented situation, the Special Counsel’s Office consulted with the Department’s Office of Legal Counsel (OLC), whose interpretation of constitutional issues such as those raised here is binding on Department prosecutors. After careful consideration, the Department has determined that the OLC’s prior opinions regarding the Constitution’s prohibition against federal impeachment and prosecution of a sitting President applies to this situation, and that, as a result, this prosecution must be dismissed before the defendant is inserted,” the proposal read.
“This prohibition is categorical and does not turn on the seriousness of the crimes charged, the strength of the government’s evidence, or the merits of the prosecution, which the government fully supports,” the motion said.
Earlier this month, Judge Chutkan canceled the remaining deadlines in the case after Smith requested time to “assess this unprecedented circumstance and determine the appropriate course moving forward consistent with Department of Justice policy” following Trump’s election.
Trump pleaded not guilty last year to federal charges of carrying out a “criminal scheme” to overturn the results of the 2020 election by recruiting a list of so-called “fake voters” using the Justice Department to conduct “contagious election crime investigations.” trying to enlist the vice president to “change the election result” and promote false claims of a stolen election during the January 6 attack. Capitol, all in an effort to undermine democracy and stay in power.
Smith subsequently charged Trump in a superseding indictment that was adjusted to honor the Supreme Court’s July ruling that Trump is entitled to immunity from prosecution for official acts performed as president.
Judge Chutkan had been considering how the case should proceed in light of the Supreme Court’s immunity ruling.
Smith had faced Dec. 2 filing deadlines for both the election meddling case and the classified documents case against Trump, after Smith’s team requested more time to decide how to handle the unprecedented situation of pending federal cases against someone who just had been elected to the presidency.
Getting that filing a week ahead of schedule now raises the question of whether Smith will be able to beat the clock to officially close his office and submit his final report to Attorney General Merrick Garland — as required of him under the DOJ’s special counsel regulations — before inauguration day.
The final report must undergo a classification review by the intelligence community, a process that can sometimes take weeks before it is cleared for any kind of public release.
This is a development story. Please check back for updates.
